City of Seattle v. Termain
City of Seattle v. Termain
Opinion of the Court
¶1
—A charging document alleging a violation of a domestic violence order must identify the order the
FACTS
¶2 On May 5, 2002, the King County Superior Court issued a protection order prohibiting Kyla Termain from having contact with M.L. The order was served on Termain in court.
¶3 On June 11, 2002, and again on June 16, 2002, there was alleged lewd name calling or gesturing from Termain to M.L. while both were on Seattle streets. On July 18, 2002, the City charged Termain with two counts of violating a domestic violence order. The charging document alleged two counts using identical language with the exception of handwritten arrows and dates of “6/11” printed above count I and “6/16” above count II. The language of the charging document is as follows:
Between June 11, 2002 and June 16, 2002, in the City of Seattle, King County, Washington, the above-named defendant did commit the following offense(s):
Count 1 [or Count 2]
Commit the crime of VIOLATION OF A DOMESTIC VIOLENCE ORDER by knowingly violating a restraint provision, a provision excluding him or her from a residence, workplace, school or daycare or a provision prohibiting him or her from knowingly coming within or knowingly remaining within a specified distance of a location of an order granted under Seattle Municipal Code Chapter 12A.06 by Seattle Municipal Court or of an order granted under Revised Code of Washington Chapter 10.99, Chapter 26.09, Chapter 26.10, Chapter 26.26, Chapter 26.50, Chapter 74.34 or an equivalent ordinance by a*801 court of competent jurisdiction or knowingly violating a provision of a foreign protection order specifically indicating that a violation will be a crime issued by a court having jurisdiction over him or her and the person protected by the order and the matter under the law of the state, territory, possession, tribe or United States military tribunal, Contrary to Seattle Municipal Code Section(s): 12A.06.180-A
The matter was tried to a jury, which found Termain guilty on both counts.
¶4 Termain appealed to the superior court, alleging for the first time that the language of the charging document was insufficient. The superior court agreed and held:
Appellant [Termain] challenges the sufficiency of the complaint filed in this matter. Since the issue is first raised on appeal, the court must first determine if an essential element is missing. If it is, then the court must determine whether the missing element may be fairly implied from the language of the charging document. Appellant was charged and convicted of two counts of violating a domestic violence protection order. An essential element of this crime is the order alleged to have been violated. State v. Clowes, 104 Wn. App. 935, 18 P.3d 596 (2001). Although the complaint herein recites a litany of statutes under which the alleged protection order could have been issued, the charging document contains no reference whatsoever to the actual order the defendant is accused of violating. Thus, appellant is left to guess at the crime he is alleged to have committed. Moreover, since the complaint does not recite the statute pursuant to which the order was issued, the date of issuance or the name of the protected person, accordingly, the missing element may not be fairly implied from the language on the face of the complaint. Accordingly, the judgment from below is reversed and remanded for a new trial. State v. Kjorsvik, 117 Wn.2d 93, 812 P.2d 86 (1991). Given the disposition of this matter, appellant’s remaining assignment of error need not be addressed.
The City sought discretionary review, which was granted.
¶5 The issue presented here is whether the charging document in a violation of a domestic violence order must identify the order the defendant is alleged to have violated, or at least include sufficient facts to apprise the defendant of his or her actions giving rise to the charge(s).
¶6 A charging document must describe the essential elements of a crime with reasonable certainty such that the accused may prepare a defense and plead the judgment as a bar to any subsequent prosecution for the same offense.
¶7 Here, however, Termain did not challenge the information before or during trial, but waited until the appeal. Where the challenge is made for the first time on appeal, the court construes the charging document(s) more liberally in favor of validity than does a trial court when the charging documents are initially challenged before the rendering of a verdict.
¶8 In the instant case, the information charged that Termain knowingly violated a restraint provision of an order granted under the Seattle Municipal Code (SMC) or a number of other chapters of the RCW, or violating a provision of a foreign protection order, all contrary to SMC 12A.06.180-A. The complaint tracks the language of the ordinance, but other than setting forth the dates of the charging period, the complaint fails to specifically identify the order claimed to be violated or the court granting the order. Further, the charging document does not contain any factual basis for the charges or identify the victim, even by using initials. Some courts have held that the statute does not require the inclusion of either of these as an element of the offense. However, mere recitation of the statutory language is not always sufficient.
¶9 The City’s reliance on State v. Snapp
¶10 In domestic violence cases, the culpable act necessary to establish the violation of a no-contact order is determined by the scope of the predicate order.
¶11 The superior court and Termain relied on the holding of State v. Clowes.
¶12 The City argues that Clowes is distinguishable because the relevant statute, interfering with the reporting of a domestic violence crime, necessitates that the victim and crime must be listed in the charging document but that the identity of the victim does not have to be disclosed in the information. But the definition of interfering with the reporting of domestic violence is no more specific than that for violation of a no-contact order. The City also argues that Clowes cannot be read to hold that a charging document, in general, is defective because it does not name the victim.
¶13 It is true that the cases cited by the City hold that the victim’s name is not an essential element of a crime.
¶15 The decision of the superior court is affirmed.
Coleman and Agid, JJ. concur.
It appears from the record that there are judges of the superior court who have differing views on how this question should be answered. Thus, we have determined to publish this decision.
State v. Leach, 113 Wn.2d 679, 689, 782 P.2d 552 (1989). Both statutory and implied elements must be included. State v. Kjorsvik, 117 Wn.2d 93, 102, 812 P.2d 86 (1991).
Kjorsvik, 117 Wn.2d at 98 (emphasis omitted) (quoting Leach, 113 Wn.2d at 689).
State v. Goodman, 150 Wn.2d 774, 784, 83 P.3d 410 (2004) (citing State v. Vangerpen, 125 Wn.2d 782, 787, 888 P.2d 1177 (1995)).
Kjorsvik, 117 Wn.2d at 102.
City of Auburn v. Brooke, 119 Wn.2d 623, 636, 836 P.2d 212 (1992).
State v. Simon, 120 Wn.2d 196, 199, 840 P.2d 172 (1992).
Kjorsvik, 117 Wn.2d at 98-99 & n.4; Leach, 113 Wn.2d at 688-89. (The statutory language is sufficient only when the statute defines the offense with certainty.)
Kjorsvik, 117 Wn.2d at 98.
Kjorsvik, 117 Wn.2d at 106.
119 Wn. App. 614, 82 P.3d 252 (2004).
City of Seattle v. Edwards, 87 Wn. App. 305, 308, 941 P.2d 697 (1997).
Edwards, 87 Wn. App. at 308.
104 Wn. App. 935, 18 P.3d 596 (2001).
Clowes, 104 Wn. App. at 942 n3.
Clowes, 104 Wn. App. at 942 (citing State v. Gill, 103 Wn. App. 435, 442, 13 P.3d 646 (2000)).
At oral argument counsel for Tfermain indicated that a recitation of the specific order by its number as well as an indication of the court that imposed the order would be sufficient to apprise a defendant of the charge. We agree.
See State v. Plano, 67 Wn. App. 674, 678-80, 838 P.2d 1145 (1992); State v. Johnston, 100 Wn. App. 126, 134, 996 P.2d 629 (2000); State v. Larson, 178 Wn. 227, 228-29, 34 P.2d 455 (1934).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.